Ahammed Maniyoor v. Saira N.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944** **R.C.REV.NO.17 OF 2022** **AGAINST THE JUDGMENT DATED 08.11.2021 IN R.C.A.NO.138 OF 2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), THALASSERY AND THE ORDER DATED 27.08.2019 IN R.C.P.NO.40 OF 2018 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** **AHAMMED MANIYOOR, AGED 75 YEARS, S/O KAMAL HAJI, ADVOCATE, SUB JAIL, SOUTH BAZAR, P.O.CIVIL STATION, KANNUR-670001.** **BY ADV K.RAJESH SUKUMARAN** ## **RESPONDENT:** **SAIRA N., AGED 55 YEARS, D/O SHYAMALA, RESIDING AT SAIRAJ, KAKKAD ROAD, SOUTH BAZAR, KANNUR, PIN – 670002.** **BY ADV P.U.SHAILAJAN (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev.No. 17 of 2022 ## **O R D E R** ## Ajithkumar, J. The tenant is the revision petitioner. R.C.P.No.40 of 2018 was filed by the respondent-landlady seeking eviction of the petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 before the Rent Control Court (Additional Munsiff), Kannur. The Rent Control Court as per order dated 27.08.2019 ordered eviction by allowing the rent control petition. The petitioner-tenant carried the matter in appeal by filing R.C.A.No.138 of 2019 and the Rent Control Appellate Authority (District Judge), Thalassery, dismissed the appeal as per judgment dated 08.11.2021. Feeling aggrieved thereof, this revision under Section 20 of the Act is filed by the petitioner. 2. The respondent-landlady wants to start a pooja store in the petition schedule shop room, which is situated near to Kanji Kamakshi Amman Kovil Temple and as she is not in possession of any other room suitable for the purpose, she filed the rent control petition, seeking eviction of the 3 R.C.Rev.No. 17 of 2022 petitioner. It was also contended that the respondent owns a shopping complex named 'Syamala Complex' and a few rooms in the first floor of that building remain vacant. But the said rooms are not suitable for the projected need. The said contentions of the respondent in support of her plea for eviction were resisted by the petitioner by filing a counter statement. He contended that the respondent, who is an immensely rich lady, now residing along with her husband at a distant place, would not come to start a pooja store in the petition schedule shop room. It is not a bona fide need, but only a pretext for evicting the petitioner. He runs his Advocate office in the petition schedule shop room and no other room is available in the locality to shift his office. Therefore, he took the stand that the eviction on the ground of bona fide need of the respondent was not liable to be ordered. 3. The Rent Control Court recorded oral evidence of PW1 and RW1, the parties to the petition. Exts.A1 to A4 and C1 were received in evidence. In the light of the said evidence, the Rent Control Court as well as the Appellate 4 R.C.Rev.No. 17 of 2022 Authority concurrently held that the need urged by the respondent was bona fide, the first proviso to Section 11(3) of the Act would not have application and the petitioner is ineligible to claim benefit of the second proviso. 4. When this matter came up for consideration on 20.01.2022, it was admitted to file and ordered urgent notice to the respondent. Coercive steps in the execution petition was deferred initially for a period of one month. The order was extended from time to time and is still in force. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6. The landlord-tenant relationship is admitted. Tenancy originated in 1987. Ever thereafter, the office of an Advocate has been functioning there. The petition schedule room is admittedly situated near to Kanji Kamakshi Amman Kovil Temple, Kannur. It is the contention of the respondent that she wants to start a pooja store; since it has become necessary considering her present circumstances. PW1, the 5 R.C.Rev.No. 17 of 2022 respondent, deposed in detail regarding her plan to start such a business. Suitability of the room for such a business is highlighted saying that it is situated in close proximity to the Temple, and therefore, the prospects of such a business is high. She further stated that she owns “Shyamala Compex', which is situated in Kannur town, but it is at a distant place. She admitted that two rooms on the first floor of the building are lying vacant, but there is no meaning in starting a pooja store in the said rooms. 7. The contention of the petitioner is that firstly, the respondent does not want to start such a business, since she is a rich lady living peacefully along with her husband at a far away place; and secondly, that the room is not suitable for the purpose. The learned counsel appearing for the petitioner further contended that having the room been occupied for the lawyer's office for years together, it is best suited for that purpose than a pooja store, especially considering the proximity of the room with the courts. It is the obligation of the respondent to give special reasons for opting for the 6 R.C.Rev.No. 17 of 2022 petition schedule shop room, without occupying the rooms already available with her. Lack of explanation for not occupying such vacant rooms; not only tells upon the bona fides of the landlady; but also attracts the mischief of the first proviso to Section 11(3) of the Act. 8. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special 7 R.C.Rev.No. 17 of 2022 reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 9. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated that, as laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given 8 R.C.Rev.No. 17 of 2022 facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in **Deena Nath v. Pooran Lal [(2001) 5 SCC** **705]** bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 10. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. In **Gireeshbabu T. P. v. Jameela and others [2021 (5) KHC** **SN 30]** this Court reiterated that in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the 9 R.C.Rev.No. 17 of 2022 landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act. 11. Considering the aforesaid legal principles, the respondent has to convince the court that the need urged by her is honest, sincere and bona fide. The specific case of the respondent is that she wants to start a pooja store. A person starting a business can plan the same with the objective in mind that the same would prosper. When the respondent claims that if she starts a business in pooja articles in the petition schedule shop room, which is situated near to the Temple, it will prosper, it can be said that she decided so with 10 R.C.Rev.No. 17 of 2022 an honest and sincere objective. Her ability to start such a business is not at stake. Taking into account all such factors in the light of the principles of law stated above, we are of the view that the need urged by the respondent is bona fide. The same reasons are relevant while considering the first proviso to Section 11(3) of the Act as well. In the circumstances, we find no reason to intervene with the findings of the courts below that the need urged by the respondent is bona fide and the first proviso to Section 11(3) of the Act would not attract in this case. 12. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. A Full Bench of this Court in **Francis v. Sreedevi Varassiar [2003 (2) KLT 230]** held that it is for the tenant to prove both the limbs of the second 11 R.C.Rev.No. 17 of 2022 proviso to Section 11(3) of the Act and that the tenant cannot insist that alternative accommodation should be similar to that of the tenanted premises in terms of the rate of rent and convenience. 13. As per the second proviso to Section 11(3) of the Act, the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 14. In **Ammeer Hamsa v. Ramabhadran and another [2019 (2) KHC 465]** a Division Bench of this Court held that, it is trite law that both limbs under the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are conjunctive and the burden of proof is on the tenant. Thus, the legal position has been settled by a long line of decisions and the courts below have rightly placed reliance upon those decisions. Vide: **Narayanan Nair v.** 12 R.C.Rev.No. 17 of 2022 **Pachumma [1980 KLT 430]** , **Prasannan v. Haris [2005 (2) KLT 365]** , **Vineethan v. Fathima and others [2016 (1) KHC 631]** . In view of the legal position well settled by the aforesaid decisions, the landlord is not required to plead or prove other sources of income of the tenant. That apart, income is a fact which remains exclusively in the knowledge of each person only and another person cannot adduce evidence to prove income. Where the statutory provision itself explicitly imposes the burden of proof on a party to the lis, there cannot be any variation whatever be the pleadings of the other party in that respect. The second proviso to Section 11(3) is an exception to the principal provision, granting protection to the tenant. When the second proviso itself imposes the burden of proof on the tenant, the question whether the landlord has pleaded or proved the facts constituting the said proviso is insignificant and irrelevant. Even if the landlord pleaded so, the burden of proof will not be shifted to him. Since the second proviso to Section 11(3) is an exception to the principal provision, which would dis-entitle 13 R.C.Rev.No. 17 of 2022 the landlord to get the order of eviction under Section 11(3), the burden of proof, under the said proviso is always on the tenant and unless the burden of proof under the second proviso is discharged satisfactorily, the tenant is not entitled to get protection under the said proviso to Section 11(3) of the Act. 15. Insofar as the second proviso to Section 11(3) of the Act is concerned, the Rent Control Court and the Appellate Authority concurrently found that the tenant is not entitled to the protection under the said proviso. As held in **Chettiar v. Venkita Krishna Iyer [2002 (3) KLT 1]** advocate profession carried on by the tenant is his trade or business for the purpose of second proviso to Section 11(3). But not enough evidence is adduced to prove that the income for the livelihood of the petitioner is the income from the office being run in the petition schedule shop room alone. 16. The Appellate Authority in its judgment noticed that, RW1, the petitioner admitted that vacant rooms are available in the locality. That finding is not seriously assailed. 14 R.C.Rev.No. 17 of 2022 After considering the pleadings and evidence on record, the Appellate Authority confirmed the finding of the Rent Control Court on the second proviso to Section 11(3) of the Act. That finding of the Rent Control Court and the Appellate Authority is neither perverse nor patently illegal and it cannot also be said that while arriving at such a finding, the authorities below have committed any manifest error, warranting interference in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. ## 17. In **Rukmini Amma Saradamma v. Kallyani** **Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and 15 R.C.Rev.No. 17 of 2022 revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it - cannot mean that there could be a re appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 18. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench 16 R.C.Rev.No. 17 of 2022 agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 19. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh (supra)** the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could - not re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 20. In the light of the findings above, we hold that the order of eviction passed by the Rent Control Court, which stands confirmed by the Appellate Authority, is not liable to be 17 R.C.Rev.No. 17 of 2022 interfered with by invoking the jurisdiction of this Court under Section 20 of the Act. There is no reason to find that the order of eviction is illegal, irregular or improper. In the circumstances, this revision petition fails and the same is dismissed. 21. The learned counsel for the petitioners has made a request to afford one year for vacating the premises pointing out the difficulty to find out a suitable room and making necessary arrangements for shifting his office. The learned counsel for the respondent is agreeable to grant six months’ time. 22. Having considered all the aspects, we deem it appropriate to grant seven months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will 18 R.C.Rev.No. 17 of 2022 surrender vacant possession of the petition schedule shop room to the petitioner-landlady within seven months from the date of this order and that, he shall not induct third parties into possession of the petition schedule shop room; - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr